In recent years, the term “fiduciary” has been tossed out like parade candy. Is my broker a fiduciary? Is my financial planner a fiduciary? What about my investment advisor? My recordkeeper? Unfortunately, what should be a simple concept has become quite complicated.
Industry titles can further the confusion as no standards exist for them. Many investment advisors are also financial planners, but not all financial planners are investment advisors. Those who operate as financial planners can actually be brokers as well, creating financial plans designed to be implemented with commissionable products.
With so many different titles for financial professionals, it can be hard to determine who is a fiduciary and acting in your best interest, and who is not. This holds especially true when these professionals appear to provide fiduciary-like services or even present themselves as fiduciaries when in reality they are not.
By definition, a true fiduciary is “a person or organization that acts on behalf of another person or group, putting their client’s interest ahead of their own, with a duty to preserve good faith and trust.” A fiduciary is legally bound to put their clients’ or retirement plan participants’ best interests ahead of their own.
When a broker makes a commission from selling a product to his or her client, the broker is by nature acting in his or her own interests and therefore cannot be a fiduciary. This may also be the case for recordkeepers, money managers, bankers, and many others when acting solely in their professional capacities.
While many of these professionals may provide “fiduciary-like” services, they may not necessarily be a fiduciary to the plan or its participants. Every retirement plan must have at least one named fiduciary, often the plan sponsor or a committee empowered by the plan sponsor. If the plan sponsor’s named fiduciary does not feel qualified to make decisions on behalf of the plan or is not an expert, then it is incumbent upon the named fiduciary to hire an external fiduciary who is an expert, qualified and unconflicted.
So, why is finding a true fiduciary so challenging? There are many factors at play here. The complicated regulatory landscape is one of these as ever-changing and, at times, conflicting regulations abound.
Between the Department of Labor (“DOL”), the Securities and Exchange Commission (“SEC”), and other regulatory authorities, it can be hard to keep up with the various standards and exemptions for fiduciaries. And, unlike certain other professions like accounting and law, which operate under a strict code of ethics and standards for business practices, conflicts of interest are more readily found in the financial services industry, which lacks similar professional requirements.
This fact further contributes to the challenge plan fiduciaries face when attempting to identify potential conflicts of interest. Sadly, many financial incentives are in place to reward advisors for non-fiduciary activities. And, in many cases, compensation for non-fiduciary products and services are more remunerative than are those for fiduciary services.
Barriers to true fiduciaries
Compliance and legal opinions rather than moral discernment is a further example of a barrier to finding true ethical fiduciaries. As mentioned above, financial rewards may be greater for non-fiduciary services.
As such, some investment professionals may look for the best way to comply rather than adhering to a true fiduciary standard. An exemplary fiduciary will not compromise a client’s best interest for their own, but instead will hold themselves to the highest of standards and values. They will use true moral discernment when acting in a fiduciary capacity and not just look for the easiest way to “check the box.”
Retirement plan fiduciaries must meet their responsibilities and have a documented process for oversight of the plan. Some of the general responsibilities of a retirement plan fiduciary, as stated by the DOL, are acting solely in the best interests of plan participants, carrying out duties prudently, following the plan documents, diversifying plan investments, and paying reasonable plan expenses.
One of the biggest causes of ERISA litigation comes from misplaced trust, whether this is intentional or as a result of benign neglect.
For example, plan sponsors may have the perception that a recordkeeper is acting in the best interest of the participants when the recordkeeper makes a recommendation. This is not always the case and recordkeepers are not legally required to do so.
Recordkeepers may profit through proprietary products in the investment menu and/or managed account services, among other things. It is incumbent upon fiduciaries to carefully and independently weigh the costs and anticipated benefits of any products and services offered to plan participants, particularly if the costs are to be borne by the participants (whether visible or not).
Advisory and other financial services businesses can also pose monitoring challenges for fiduciaries.
Many advisory or insurance firms also generate revenue from non-fiduciary services and products, often leveraging their relationship with the retirement plan to do so. These firms do not always clearly disclose that they receive compensation for these services to their clients, creating challenges for fiduciaries.
For example, an advisor could consistently recommend that clients place recordkeeping business with an insurance company that provides financial benefits to the advisor’s parent company.
Although this may seem innocuous, it calls into question the independence of the selection process.
What can a plan sponsor do to mitigate all these challenges they are facing? Decades of regulation have not fully addressed this question and it seems unlikely that regulations alone will fix the problem in the future. Likewise, given the material financial disincentives that exist in the financial services industry itself, it seems equally unlikely that the industry will internally address this issue.
An “educated purchaser” is likely the best and most effective short-term solution. As most plan-sponsor fiduciaries may lack the necessary background to serve as their own educated purchaser, a critical step in addressing the issue is to hire fiduciary expert(s) that simply and clearly lack any conflicts of interest on either a personal or firm-wide basis.
If enough plan sponsors educate themselves on what makes a good fiduciary and enough boards and committees commit to only working with those who are fiduciaries of the highest standards, the marketplace may move in that direction over time. In the meantime, keep it simple.
Rick Rodgers, AIFA®, is a Principal and Kristin Lee is a Senior Analyst with Denver, Colo.-based Innovest Portfolio Solutions.
